Honorable L. R. Thompson
County Auditor
Taylor County
Abllene, Texas
Dear Sir: Opinion No.‘O-2701
Re: Would an old age assistance investiga-
tor who Is working for the State Department
, of Public Welfare in this Stalebe prohibited
from holding office as a trustee of an in-
- dependent school district in this State under
the laws of th1a State?
.
Your request for opinion upon the'above stated ques-
~'tion has been received and carefully considered bY this depart-
ment. .
Article 16, Section 40 of our State Constitution, reads
in part as follows:
"No person shall hold or exercise at the same
time, more than one civil office of emolument...."
Various exceptions, immaterial here, are provided for in this
section.
We quote from 34 Texas JurisprudenTe, page 323, as
follows:
"'Office' embraces the ideas of tenure, dura-
tion, emolument and dut.ies. Among the criteria
for determining whether an employment Is a public
office are the following: the delegation of a por-
tion of the sovereign functions of the government;
the requirement of an official oath; that the powers
entrusted are conferred by law and not by contract;
and the fixing of the duration or term of office.
It Is the duty pertaining to the office and the
nature of that duty, and not the extent of authority
which make the incumbent an officer; and one is
none the less an officer because his authority is
confined to narrow limits. Salary or compensation
is not essential to constitute an employment an
offlce; it is a mere Incident and forms no part of
the office."
Honorable L. R. Thompson, page 2 O-2701
Since you did not specify in your letter.under what
Act the independent school district was created, we shall as-
sume that It was created under the general authority of Chap-
ter 13, Title 49 of the Revised Civil Statutes of Texas, 1925,
Article 2775 thereof provides In part as follows:
"In each independent district that shall here-
afterbe organized, the county judge of the
county in which said Independent district is sit-
uated shall order an election for seven trustees,
who shall constitute the school board of such
I
district, and all of whom shall serve without
comoensatlon. (Underscoring ours)
It is, therefore, apparent that a member of the Board
of Trustees of an Independent school dlstrlct, created under
the general law, does not hold an office of em lum nt within
the meaning of Article 16, Section 40, of our itat: Constitu-
tlon.
We quote from 34 Texas Jurisprudence, page 349, refer-
ring to Article 16, Sectlon 40, as follows:
"The Constitution applies only to offices of
emolument. 'Emolument' means a pecuniary profit,
gain or advantage; hence the same person may hold
two civil offices where no pay, compensation or
pecuniary gain attaches to one of them, provided
they are not Incompatible."
We know of no reason why the duties of a member of the
Board of Trustees of an Independent school district should be
in any manner conflicting or incompatible with the duties of
an old age pension investigator of the State Department of
Public Welfare,of Texas.
We have carefully examined the statutes of this State
pertaining to the State Department of Public Welfare .ofTexas
and we find no statute purporting to create an office known
as an 'Old Age Pension Investigator.' We have been informed
by the State Department of Public Welfare that an old age
pension investigator is merely an employee of the Department
who has no fixed tenure and can be discharged at will by the
Department.
We conclude therefore that an old age pension investi-
gator is not an officer but merely holds a position of honor,
trust or profit under the State of Texas.
Therefore, Article 1.6, Section 40, of our State Constl-
,
Honorable L. R. Thompson, page 3 o-2701
tutlon would not apply to the above situation, inasmuch as an
old age pension investigator is not an officer, nor a holder
of a civil office of emolument, and a trustee of an lndepend-
ent school district does not hold a civil office of emolument.
Article 16, Section 33, of our State Constitution,,
reads In part, as follows:
"The accounting officers of this State shall
neither draw nor pay a warrant upon the Treasury
In favor of any person, for salary or compensa-
, tion as agent, officer or appointee, who holds
at the same time any other office or position of
honor, trust or profit; under this State or the
United States, except as prescr~ibedin this Con-
stitution."
A trustee of an Independent school districtis a civil
officer of the State. See Thomas,,et al vs. A,bernathyCounty
Line Independent School District, et al, 278 SW 213 (1926).
There can be no doubt that a trustee of an independent
school district holds an office of honorsAndytrust within the
meaning of Article 16, Section 33, of our State Constitution.
See Opinion No. O-1422 of this department.
Opinion No. O-1422 of this department holds that a per-
son may legally serve on the board of directors of the Texas
College of Arts and Industries, and at the same time serve as
a member of the board of trustees of an Independent school dis-
trict; but in doing so he forfeits all right to any compensation
to which he might have been entitled as a director of'the col-
lege, by reason of Article 1.6, Section 33, of the Texas Constl-
tution.
Opinion No. o-2528 of this department holds that a
person may legally serve as an inspector of the Texas Liquor
Control Board, and at the same time serve as a member of the
Board of Trustees 'of an lndependent school district; but in
doing so, he forfeits all right to any compensation to which
he might have been entitled as an Inspector of the Texas Liquor
Control Board, by reason of Article 16, Section 33, of the
Texas Constitution.
Limited Conference Opinion No. 0-2607 of this depart-
ment holds that if a physician employed part time by one ln-
stltution of the State accepts and holds a slmllar place or
posltlon in another instftutlon at the same time, he cannot
receive a salary or compensation for either position during
the period of time that both are helcl..We enclose herewith a
.. . .
.
Honorable L. R. Thompson, page 4 O-2701
copy of said opinion which contains a comprehensive dlscus-
-sion of the matters involved therein.
In the Instant question an old age pension Investigator
clearly holds a position of profit under the State. Doubtless,
It Is also a position of honor and trust. We also think he
would be "an appointee" under the holding of our Opinion No.
0-2607. And as shown above, a trustee of an Independent school
district holds an offlce of honor and trust under this State.
You are therefore respectfully advised that it is the
opinion of this department that a person may legally serve as
an old age pension lnvestlgator under the State Department of
Public Welfare of Texas, and at the same time serve as a mem-
ber of the board of trustees of an independent school district;
but In doing so, he forfeits all right to any compensation for
such period of time to which he might have been entitled as
an old age pension Investigator of the State Department of
Public Welfare .of Texas, by reason of Article 16, Section 33,
of our State Constitution.'
Very truly yours
ATTORNEY GENERAL OF TEEAS
By s/‘Wm.J. Fanning
Wm. J. Fanning
Assistant
WJF:AW:wc
APPROVEBSEP 13, 1940 '
s/Gerald C. Mann
ATTORNEY GENERALSOF TEXAS
Approved Opinion Committee By s/BWB Chairman